Police: Vetting, Misconduct and Misogyny
Lord Wallace of Tankerness Excerpts(2 years, 1 month ago)
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Lord Sharpe of Epsom (Con)
My Lords, I think I have outlined the current system; that is all I am doing. I am not saying that the Government are not very concerned by this report, but the simple fact of the matter is that the Government do not have responsibility for operational policing.
Lord Wallace of Tankerness (LD)
My Lords, the Minister just said that that is the current system. Are the Government satisfied with the current system, and if not, what are they are going to do about it?
Lord Sharpe of Epsom (Con)
It is not in my gift to do anything about it, but I will take the noble and learned Lord’s suggestion back to the Home Office and make sure that there are further discussions on the outcome of this report, and indeed this discussion.
Istanbul Convention
Lord Wallace of Tankerness Excerpts(8 years ago)
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Baroness Williams of Trafford
I literally cannot answer that at this point because I do not have the figures before me. I apologise to the noble Baroness, Lady Chakrabarti, because I forgot to welcome her to the Front Bench.
Lord Wallace of Tankerness (LD)
My Lords, the Minister has talked about legislation for extending extraterritoriality in England and Wales. What discussion has there been with the Scottish Government about extraterritoriality in respect of this convention with regard to Scotland?
Baroness Williams of Trafford
We liaise regularly with the devolved Administrations on violence against women and girls issues. Ministry of Justice officials have had informal contact with their counterparts in the devolved Administrations about the extraterritorial jurisdiction requirements of Article 44. We will formally consult Ministers in the devolved Administrations about whether legislative change on ETJ in England and Wales should extend to Scotland and Northern Ireland in due course.
Data Retention and Investigatory Powers Bill
Lord Wallace of Tankerness Excerpts(10 years, 5 months ago)
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The Earl of Erroll
I am sorry; I am not suggesting that there is any at the moment at all. There has been historically—the Cambridge set. There are problems with people at the top from time to time.
The Earl of Erroll
Yes, treason rather than corruption. I do not mind what you want to call it—whatever. All I am saying is that we in Parliament are here to protect the people. We happen to have the senior members of the Executive here as well, which is very useful for holding them to account. But they have to be double-hatted and remember that they are putting in place processes for their successors.
The noble Lord, Lord Rooker, made the point about the public needing to be reassured that the people at the top are being watched. We are seeing enough conspiracy theories emerging in the press at the moment about rings protecting themselves. We do not need any more of those suggestions. That is why I think we need an earlier debate on this. It is not about the technical part of it; it is about reassuring the public that we have the right checks and balances at the top. That is not technical; it is about how we watch people.
Immigration Bill
Lord Wallace of Tankerness Excerpts(10 years, 7 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, Amendment 2 is to Clause 15(5), which provides that the tribunal may not hear a new matter unless the Secretary of State consents to its doing so. There was a debate on that provision on Report, and I am grateful to those noble Lords and noble and learned Lords who have had an opportunity since then to follow that up and to have a better understanding of the concerns which prompted the tabling of that amendment. Since the Government tabled this amendment a number of points have been raised by my noble friend Lady Hamwee and the noble and learned Lord, Lord Hope of Craighead. I hope that I can address those points in speaking to this amendment.
Our discussions were helpful and not least identified that the definition of a “new matter” is wider than necessary because it includes reasons for wishing to remain in the United Kingdom which, if refused, would not give rise to a right of appeal. This potentially extends the scope of the power to give consent beyond appealable matters. As the significance of “new matter” is restricted to circumstances in which an appeal would arise as a consequence of the decision, the definition should be similarly restricted—hence this amendment.
My noble friend Lady Hamwee has asked why the amendment does not address the substance of the arguments made on Report. The Government remain committed to the important principle that the Secretary of State should be the primary decision-maker. An amendment that provided for the tribunal to have discretion as to whether it should hear a new matter would undermine that principle. It could also create a substantial risk of satellite litigation about the circumstances in which that discretion should be exercised.
We have heard examples, particularly on Report, where it was suggested that it would not be right for the tribunal to be prohibited from hearing a new matter. It is our intention that the Home Office will publish detailed guidance on when consent should be given. I can assure your Lordships that the examples given—such as when the illness of the appellant makes determination of the appeal urgent, or where inadequate legal representation has meant that the new matter could not have been raised earlier—are the types of circumstance in which that guidance will direct presenting officers to give substantial weight when considering the issue of consent.
In certain circumstances, however, the Secretary of State’s consideration of a new matter is fundamental to that matter being correctly decided, including by the tribunal. For example, where the new matter is an asylum claim it is only the Secretary of State who, having taken fingerprints from the individual, can verify that the claim has not been made previously in the United Kingdom or another EU member state. It is in those cases that consent for the tribunal to hear the new matter may be refused. However, even in such cases, whether to grant consent will also be informed by the individual’s circumstances.
The noble and learned Lord, Lord Hope of Craighead, asked whether guidance would be provided for the situation where the presenting officer is unable to take instructions on whether to grant consent. I assure the noble and learned Lord that the guidance will provide for this situation. I can also elaborate on the details, which I hope will provide further reassurance.
Lord Wallace of Tankerness
My Lords, I thank all noble Lords who have contributed to this debate. I do not think I tried to oversell what the amendment will do because it is in many respects technical and addresses a problem that was identified as the result of an amendment moved on Report by my noble friend Lady Berridge. Even those noble Lords who have raised questions acknowledge the principle that the Home Secretary is the primary decision-maker; it is something that Parliament has agreed. What this subsection seeks to do is to accept that there will be circumstances where the consent of the Secretary of State is given for the tribunal to hear a new matter, albeit that the Secretary of State is the primary decision-maker. I am also sure that the guidance will reflect what the noble and learned Lord, Lord Woolf, has said. It will be based on the great experience garnered over the years on how these tribunals work, and the intention is to facilitate rather than to frustrate.
I would say to my noble friend Lord Avebury that, as I indicated in responding to the point raised by the noble and learned Lord, Lord Hope, if a presenting officer, having considered the guidance, takes the view that consent should be granted for the tribunal to hear the new matter, he or she does not need to take instructions in order for that decision to be made. It is only where the presenting officer, having considered the guidance, takes the view that the consent should not be granted that instructions would need to be taken. I discussed the position with officials before coming to your Lordships’ Chamber today, not least because the noble and learned Lord, Lord Hope, had raised it, and I have been assured that it is very unlikely indeed that a presenting officer would be unable to take instructions. I shy away from using the word “impossible” because you can bet your life that, if I say that, something will happen in the first week. However, I am told that it is highly unlikely because an established process is in place by which the senior caseworkers in each presenting officer’s unit work on a rota system to provide these kinds of instructions to presenting officers. It is anticipated that there would be a very brief adjournment to allow the instruction to be taken.
My noble friend Lady Berridge asked about judicial review, a point that was echoed by my noble friend Lord Avebury. The Home Office keeps a record of the judicial reviews that are brought, and certainly it will continue to monitor closely the effectiveness of this new power. It is important to note that judicial review can be brought for a number of reasons, not just the ones that have been identified in this debate. The question I was asked was whether a record is kept, and the answer is yes. A record is kept which will help to inform a review of the effectiveness of this provision.
My noble friend Lady Hamwee is right inasmuch as this guidance is technically for the Home Secretary, but it is intended for the presenting officers who act on behalf of the Home Secretary. However, as I say, it will be published and so people will know what it contains. I also indicated to my noble friend when moving the amendment that, if the guidance is not followed and there is no sound basis for departing from it, I rather think that a judicial review may follow hot on the heels of any such decision. How the judicial review is determined is of course a matter for the courts, but the fact that it will be published should, I hope, provide some degree of certainty and consistency in how the Home Secretary exercises the consent provision set out in this subsection. I therefore commend the amendment to your Lordships.
Immigration Bill
Lord Wallace of Tankerness Excerpts(10 years, 8 months ago)
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Baroness Smith of Basildon
My Lords, I rise briefly to comment that the noble Baroness, Lady Berridge, has done a service to your Lordships’ House because she has given the Minister the opportunity to think again and to take advice from some of the best legal minds that the country has. I hope that he will take that opportunity.
I am not a lawyer, but one thing that strikes me is the issue of fairness. The noble Baroness, Lady Berridge, raised the point when she used a football analogy—not something that I would normally do in any event whatever. My noble friend Lord Bach laughs, because he knows my loathing of the obsession with football. But the idea that the scope of the tribunal’s jurisdiction should depend on the consent of one of the parties to the appeal is something that offends a great many noble Lords and their sense of justice and fairness.
My only question to the noble Baroness, which I asked her when I saw that she had raised this matter, was whether the Government had ever raised any concerns and whether this proposal would make it more difficult for them, given their problems in deporting foreign criminals. She was able to assure me that it has never been raised by the Government as causing any concern whatever. I think that the Minister should take the opportunity that has been presented to look at this again. The noble Baroness says that the amendment is not perfect, but it does not need to be perfect to take it away and give some further consideration to what has given a lot of concern to noble Lords across the House.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, I am grateful to my noble friend Lady Berridge for introducing this amendment, which, as the noble Baroness, Lady Smith, said, has given rise to many learned contributions in the course of debate. As has been indicated, the amendment would place the tribunal in a position of the primary decision-maker; it would allow matters to be considered and decided by the tribunal without the Secretary of State having considered and decided them.
The tribunal exists to consider appeals against the refusal of an application by the Secretary of State. That is why the Bill provides that the tribunal may not consider matters that have not first been considered by the Secretary of State unless the Secretary of State consents to it doing so. Picking up the point made by the noble and learned Lord, Lord Woolf, nothing in the proposal in any way reflects on the work that has been done by the tribunal. Indeed, the point he made from experience about it being more appropriate than the cases that went to court is in no way a reflection on the tribunal.
The Joint Committee on Human Rights stated in its report that the provision relating to the Secretary of State’s consent may not be compatible with the principles of equality of arms, right of access to a court and the separation of powers because it allows one of the parties to an appeal, the Secretary of State, to determine the scope of the tribunal’s jurisdiction. Of course, ultimately Parliament sets the jurisdiction of the parameters within which the tribunal will operate.
However, the principal reason why the Government have proposed this measure is that we do not believe it is right for the tribunal to be the primary decision-maker. I certainly will reflect on the points made on that principle. I noted that the noble and learned Lord, Lord Woolf, said that it was more practical for the tribunal to deal with this matter although, technically, the decision-making body was the Secretary of State. I think that my noble and learned friend Lord Mackay of Clashfern made the point that the primary decision-maker in these matters is the Secretary of State. Therefore, I do not think it is such a clear question of principle as perhaps has been suggested. The noble and learned Lord, Lord Woolf, maintained that there were compelling practical reasons. However, the primary decision-maker is, indeed, the Secretary of State. The role of the Secretary of State—
Lord Woolf
Perhaps the noble and learned Lord will ponder on the following. Although, of course, the Secretary of State must be the primary decision-maker, the Secretary of State may not be content for the tribunal to deal with a matter and may think it is much better that it should not do so, even though it would give the greatest attention to the fact that there is an objection to the matter being dealt with by it on the very ground the Minister sets out. The matter he sets out is just the sort of matter which you can rely on the tribunal to take into account at its discretion when deciding whether to send it back to the starting point. I refer to delay in this context. It is also just the sort of matter which the Court of Appeal, for example, will take into account in considering whether it will send a matter back to the Secretary of State or deal with it itself because it is in a better position to deal with it than anybody else.
Lord Wallace of Tankerness
My Lords, I hear the point which the noble and learned Lord makes. It is also important to recognise that we have to look at where this matter might best be dealt with. The Secretary of State can still consent to the new matter being determined within the context of the existing appeal. That is obviously an issue that the Secretary of State would have to consider in deciding whether or not to give that consent.
Lord Woolf
I again apologise for interrupting, but will the noble and learned Lord bear in mind that the Secretary of State in this context means the person who is conducting the case on behalf of the Secretary of State in the tribunal on the day of the hearing? If he has not already received instructions on how to deal with it, all he can do is ask for an adjournment so that the matter can be referred back to those who have more authority than he has to decide what course to take. That will mean that, inevitably, the ability of the court—or, in this case, the tribunal—to deal with it in a sensible and summary way is in fact not going to happen in practice.
Lord Wallace of Tankerness
My Lords, one of the examples given by my noble friend Lady Berridge was that a matter may suddenly be raised. It is important to make the point that we are not talking about the appellant relying on new evidence to support a ground already before the tribunal. I know that the noble and learned Lord accepts and understands that. For example, if there was an appeal about refusal of the family life settlement, new evidence on family life would obviously be something which could be led. Nor will the clause prevent access to the court, because the individual would still have an appeal against the refusal. If the new matter on which an application was made was refused, then obviously that matter could be appealed to the tribunal.
I note what the noble and learned Lord says, but my noble friend Lady Berridge talked about a new ground of appeal which the Home Office may have found out about only the night before. When people talk about equality of arms, I am not necessarily persuaded that someone going into the tribunal will find that there is a completely new ground of appeal which they only learnt about within the previous 12 hours. That is an inequality of arms. My noble friend and my noble and learned friend Lord Mackay of Clashfern commented on whether or not the Home Office had been answering the telephone. These are practical issues that ought to be addressed, but I do not think they go to the principle we are discussing.
I am always wary—as was the noble Baroness, Lady Smith—of using football analogies, but they were mentioned by my noble friend in moving her amendment. If an FA Cup match went to penalties, it would not be for one party to say, “By the way, we will just go to the referee and say, ‘If we are having a penalty shoot-out, it will do for the other cup tie that we are to play next week. We will just do the two in one’”. If it is a completely new case, it is not reasonable that that should happen. I stress that this is not a situation where a person is going to be denied the opportunity to bring a separate case on a new matter. They would still be able to bring it and, if they were dissatisfied with the decision made by the Secretary of State, the appeal route would still be open to them.
The proposed measure could create an incentive for appellants to raise new matters at a late stage because they could try to persuade the tribunal that the matter should be heard despite the Secretary of State not having considered and decided the issue. The Secretary of State will have to strike that balance, depending on whether or not she wishes to give her consent—if, indeed, the case was adjourned. Documents may suddenly have been produced the veracity of which the Secretary of State will have had no opportunity to examine. If it is a new ground of appeal, the Government argue that the primary decision-maker is the Secretary of State and the proper role of the tribunal is to hear appeals against a decision of the Secretary of State, if the applicant is dissatisfied with the original outcome. As the noble and learned Lord, Lord Hope, said, I do not see that that is a case of being a judge in one’s own cause because the cause that is properly before the tribunal is one in which both parties will argue their case.
When a new cause is introduced, the Secretary of State makes a decision on it through his executive function. What in fact is being suggested is that that decision should not be made by those from the executive branch but should be a judicial decision. I think that there is a blurring there. If we are arguing as a matter of fundamental principle that a decision is one for the Executive, the question is whether, indeed, the primary decision should be made by the judiciary. I cannot ignore the force of the comments that have been made. The noble and learned Lord, Lord Hope, helpfully suggested where this might be amended. I should make it very clear that I cannot give any guarantee that the Government will come back at Third Reading with an amendment. However, it is only proper that we reflect on the very important issues that have been raised.
Lord Wallace of Tankerness
My Lords, I appreciate the noble Lord’s comments and help, which I know are made with a view to trying to resolve this matter. I assume the noble Lord means that his suggestion would be preferable to judicial review. The withholding of consent by the Secretary of State would, of course, be challengeable by judicial review but one is well aware of the attendant costs of that and a new application and appeal to the tribunal may well be cheaper and, possibly, quicker.
I must make it very clear that I am not giving any undertaking to bring this back at Third Reading, but I do undertake that it is fair and proper to reflect on the comments that have been made. On that basis, I invite my noble friend to withdraw the amendment.
Baroness Berridge
My Lords, I thank the mainly noble and learned Lords who have spoken, predominantly in support of the amendment. I am obviously disappointed by the Minister’s response to the concerns which have been properly outlined. He cites that it is a clear question of principle that the principal decision-maker is the Secretary of State, but the overriding interest in this matter is the principle of justice. As in the circumstances that I outlined, a matter may remain before the tribunal solely because a barrister makes every effort to avoid being at the hearing and cannot get hold of the Home Office to get a fresh decision made, and yet the tribunal is not allowed to take that conduct into account at all in determining whether the court can take the new matter—which may be impinged on by illness—into account. In these circumstances, one can only imagine the sense of injustice that will be felt, not only by the appellant but by their legal representatives who have gone to every effort to avoid that situation occurring.
I have listened carefully to my noble friend who says that there is no guarantee about bringing this back at Third Reading but that the Government will reflect on this matter. My knowledge of the Companion is not detailed enough for me to understand whether I am entitled to bring it back at Third Reading to determine the matter because I have never heard that phrase before in my three years in your Lordships’ House.
Baroness Hamwee
My Lords, I was not sure whether to speak yet; I was looking for a Bishop. Amendment 14 in this group is in my name and that of my noble friend Lord Avebury. I have been torn over this issue. Of course, the lawyer in me wants to see access to the courts or tribunals but the pragmatist in me says, “Get it right first time”, especially when it is something where arguably the person involved does not start with having rights. I distinguish between human rights interests, family interests and, at the other end of the spectrum, perhaps permission to come and work in a different country. At issue here is a very wide range of types of decision. Also, of course, the pragmatist says, “Find ways to improve the process to get it right”.
I have to assume that the Secretary of State is satisfied on the basis of the current out-of-country process that what is proposed will be “efficient”, “effective” and “fair”—in the words of one of the amendments. I hope that effectiveness always means fairness. I do not know that one can become satisfied that the process is efficient, effective and fair on the issue raised by the possibility of shadow working and the two systems working in parallel. I know that there are different views about that. Frankly, I doubt that it is practicable. At the previous stage, I raised the issue of reviews of procedures and—particularly important to me —independent oversight and reports to Parliament. I welcome government Amendment 12. Could my noble friend confirm, because it does not quite say this, that what is intended is a report on the first year? It says that, “Before the end of” a year the Secretary of State will commission a review.
My Amendment 14 would introduce a two-stage process, the second of which would be the chief inspector reviewing the first year of operation, and the first of which would be an opportunity for Parliament to consider the procedures after the Government have consulted on them. I am grateful to my noble friend for a letter that I received following Committee and which was copied to other noble Lords. I hope that this will be a useful opportunity for him to explain from the Dispatch Box the Government’s proposals for consultation on the proposed rules—a targeted consultation, as I understand it. There might be, if you like, a pre-consultation of noble Lords as to who might be involved in that process. I am sure we would all have ideas as to who could usefully contribute.
Since Committee, I have seen the information given to those who seek an administrative review out of country under the current procedure. I had been concerned about how representations could be made to the reviewer and what representations could be made. I can infer that from the current information but I am sure that there is scope for spelling it out more clearly. That is a matter for the practitioners, really. I was also relieved to see information on something that had popped into my head and bothered me a lot: whether there would be a charge for an administrative review. I see that that is not the case. That reminded me that this is another reason for the Home Office getting it right first time, as it will not be able to get any income from that administrative review. As it were, it funds it—rightly—from its internal resources.
Lord Wallace of Tankerness
My Lords, as the noble Baroness, Lady Smith, indicated, we debated this matter at some length in Committee. We will necessarily go over some of that ground again but I appreciate the opportunity to do so and to inform the House why we believe that it is helpful and a positive development that we should move to this system of administrative review.
Obviously, the noble Baroness’s Amendment 11 would remove Clause 15 from the Bill. In doing so, it would retain the current appeals system, which we believe is too complex and does not provide the most appropriate and effective remedy in each case against refusal decisions. I understand the reservations that have been expressed here—we rehearsed a number of the issues in Committee—about decision quality in immigration cases. First, it is again important that those concerns are seen in context. As I said—and as was once said back to me—the great majority of decisions are not refused in error. The majority of applications are successful. The noble Baroness quoted me on that. Of decisions taken in the United Kingdom, only 10% were refused in 2012. Therefore, when the majority are successful, it is not about an absence of appeals. The noble Baroness asked if some of these decisions had been wrong, too. I suspect we will never know because people tend not to appeal against decisions when they have been successful. Some 51% of that 10% that were refused in 2012 succeeded on appeal. Therefore, 5% of the total decisions taken succeeded on appeal. Of that 5% of decisions, 60% succeeded because an error was made. By my calculation, we are down to 3% of all decisions in managed immigration cases being attributable to an error.
We believe that retaining the current system, as would be the consequence of the noble Baroness’s amendment, would not improve decision quality. It would mean that people continued to wait longer and incur more expense for errors to be corrected than under the system established by Clause 15. Under Clause 15, where a claim based on a fundamental right is refused—I think we heard about some of those under the previous amendment—it can be appealed and the fundamental rights are set out in the Bill. It is right that a full-merits appeal should be available for these cases. Where the claim is not based on fundamental rights, we can indeed show that 60% of cases that succeed on appeal do so because of a working error. It is also worth reflecting that the kinds of cases we tend to deal with are those that are a matter not of judgment but of the application of objective rules. If the rules are met, leave is granted. If they are not met, leave is refused. That type of decision is well amenable to administrative review. As the noble Baroness said, the process will be quicker and cheaper than an appeal.
Lord Avebury
The figures that the noble and learned Lord has just given are interesting. He said that 21% of administrative reviews uphold the appeal, whereas earlier he said that 51% of those reviews succeeded on appeal in 2012. Does that not illustrate the anxiety everyone feels that when an appeal system is replaced with an administrative review, the rate of success goes down not for any objective reason but just because the administrative review is less favourable to the applicant?
Lord Wallace of Tankerness
My Lords, I am almost tempted to say that you are damned if you do and damned if you do not. That 51% included those cases where there was administrative error. If one wishes to drive to improve the quality of decision-making, inevitably the number of successful appeals will go down.
In Committee, concern was expressed about the opportunities for scrutiny of the Immigration Rules. I am pleased to confirm that we are committing to publishing draft rules no later than the Summer Recess. I hope that that reassures my noble friend Lady Hamwee about what I have said in my letter to her. I am happy to repeat that those rules will be the subject of a targeted consultation with key interested parties, including the Immigration Law Practitioners’ Association and Universities UK. We certainly are open to discussions with noble Lords and organisations to which noble Lords consider this consultation should be addressed. The aim of the consultation will be to ensure that all relevant views are taken into consideration before the rules are finalised. The consultation will offer an opportunity for the rules to be scrutinised and potentially amended before they are laid before Parliament in accordance with Section 3(2) of the Immigration Act 1971. Clause 15 creates a better process for all concerned—applicants, decision-makers and the court system. It will help to address the legitimate concerns raised about decision quality.
Amendment 13, which stands in the name of the noble Baroness, Lady Smith, would impose three conditions that would need to be met before the appeals provisions in Clause 15 came into force. The proposed sunrise clause would require: that the Chief Inspector of Borders and Immigration must first report on decision-making for entry clearance and managed migration; that the Secretary of State must be satisfied that decision-making for entry clearance and managed migration is efficient, effective and fair; and that the order to commence Clause 15 must be laid before and approved by both Houses. My noble friend Lady Hamwee raised the possibility that, to be able to do that, we might need to have a shadow operation, which probably would be an administrative nightmare.
I submit that we already have reports from the chief inspector on decision-making in entry clearance and managed migration. In 2013, he reported on investor and entrepreneur applications, concluding that 91% of decisions on investor applications were reasonable. That report recommended that the overseas approach of sharing administrative review outcomes to improve decision quality should be adopted in-country. That recommendation of an approach recommended by the chief inspector has informed the changes which this Bill seeks to implement through Clause 15.
The inspection of entry clearance decision-making in Warsaw in December 2013 of out-of-country administrative reviews concluded that the service was efficient and consistently meeting service standards for completing decisions. In 88% of cases reviewed, the report concluded that the right decision had been reached. We accept that this report made five recommendations for improvement. We have accepted all of these either in whole or in part.
I assure your Lordships that the Home Office takes the chief inspector’s inspections and reports seriously. A dedicated team manages the implementation of his recommendations. In his spot-checking report of August 2013, the chief inspector considered the progress that had been made against recommendations from three earlier inspections and was pleased to see evidence that the Home Office was acting upon his recommendations. We already have evidence from the chief inspector who has looked at the administrative review procedures that are applied at present for out-of-country cases of managed migration. He appears to confirm that, in the cases that were reviewed, the right decisions had been reached. As I have said, in Warsaw that was in 88% of cases.
However, we recognise the concerns that prompted Amendment 13. Therefore, we have brought forward a government amendment which takes a different but effective approach to address those concerns. Amendment 12 in the name of my noble friend Lord Taylor imposes a specific obligation on the Secretary of State to secure an independent review of administrative review. It looks forward and will review new processes. The new clause requires the Secretary of State to commission the independent chief inspector within a year of Clause 15 being commenced to prepare a report on administrative review.
My noble friend Lady Hamwee asked for confirmation that it was intended that the report would be on the first year although commissioned ahead of the first year. As I have said, the report will be commissioned within 12 months of administrative review being implemented. The Secretary of State will ask the chief inspector to complete the report within the first 12 months of the operation of administrative review. In timing the commissioning of the report, we want to strike a balance between a desire for an early report on how administrative review is working and the need to let the process operate for a period before a meaningful report can be prepared. It is therefore intended that the Secretary of State asks the chief inspector to undertake his report once administrative review has been in operation for six months and to complete his report within the first year of the operation of administrative review. The chief inspector should build flexibility into his inspection plans to allow such specific requests.
The new clause requires that the Secretary of State commissions that report and the report must address specific concerns. If noble Lords look at the terms of the amendment, they will note that the specific concerns that the chief inspector is being asked to address are ones that quite fairly reflect some of those raised in your Lordships’ House in Committee—namely, the effectiveness in identifying and correcting case working errors and the independence of the person conducting the administrative review in terms of their separation from the original decision-maker.
Baroness Manzoor (LD)
Will the chief inspector look at the substantive elements of the case rather than just the procedural review of the case and whether that has been effective? Will he also assess the merits of the case in the samples that he takes?
Lord Wallace of Tankerness
My Lords, I mentioned to my noble friend the report on out-of-country cases in Warsaw in December last year which concluded that in 88% of the cases reviewed the right decision had been reached. You can do that only if you actually look at the subject matter. Therefore, I would fully expect that the chief inspector, in undertaking his report, would have to be able to give some indication as to whether there was greater efficiency and greater accuracy in decision-making. You would have to look at sample cases to see whether the right decisions had been reached.
Amendment 14, in the names of my noble friends, requires the Government to consult on the immigration rules for administrative review. As I have already indicated, the Government will undertake a targeted consultation on the immigration rules establishing administrative review before those rules are laid before Parliament. It is not necessary to place an obligation to consult on the face of the Bill as the Government have already committed to doing so. The proposed new clause also seeks to ensure that administrative review is the subject of an early inspection and report by the Independent Chief Inspector of Borders and Immigration. As my noble friend Lady Hamwee acknowledged, Amendment 12, tabled by the Government, requires the Secretary of State to commission such a report from the chief inspector.
My noble friend raised the out-of-country administrative review note that she received. She saw the same point that I had noticed, which indicated that out-of-country reviews are free. I then noted that the statement of intent, which was published along with the Bill, indicated that there would be a fee of £80. I have queried why that is the case. I understand that a separate charge for an administrative review is incorporated into the visa application charge. To do that for in-country reviews would require increasing visa charges. I rather suspect, given what has been said in a number of other debates, not least with regard to students, that that would not be the most popular course to go down. The review is free, but the cost is already incorporated within the visa charge.
I believe that we have accepted a recommendation emanating from the chief inspector about how administrative review can work. I believe that it will work because we are following up on recommendations that have been made about how these decisions can be made more efficiently. Where we have heard evidence of administrative review working for out-of-country applications, there has been a significant improvement over the 60% of errors that were identified in that period with regard to in-country appeals. Therefore, particularly with regard to the huge difference between 28 days and 19 weeks—I suspect overall that it will be cheaper if one does not have to engage learned counsel—we are proposing something here that will be of benefit not only to applicants but to the general administrative procedure as a whole.
Therefore—I suspect without any success—I ask the noble Baroness to withdraw her amendment and to recognise that the Government have listened to what was said in many cases in Committee. We are putting on the face of the Bill an obligation on the Secretary of State to commission a report from the chief inspector and particularly to have regard to the specific concerns raised in Committee. I therefore hope that she will withdraw her amendment.
Immigration Bill
Lord Wallace of Tankerness Excerpts(10 years, 9 months ago)
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Baroness Smith of Basildon
I share that difficulty. However, what the Bill does has quite significant implications. If I take the example of somebody who is employing an individual whose leave is revoked and who then appeals, the employer has the opportunity to continue to employ that person quite legally. What is being proposed here seems to make the employer commit an offence, because from the moment that leave is revoked, even if the individual is appealing against it, they are no longer allowed to employ that person. What I come back to on a number of areas in the Bill is the issue of unintended consequences—not thinking through from point A to point B. I may have it completely wrong, and I am happy if I have, but I would like some clarification on that point.
On the other two points, the Minister will be aware of how concerned we are about the Government’s proposals on appeals and administrative reviews. I fail to understand why the Government do not want to have the Independent Chief Inspector of Borders and Immigration reviewing decisions taken in this case. The noble Baroness asked him to confirm that. An explanation would be quite helpful. The same is true on Amendment 87ZF.
As with so many proposals the Government bring forward, I would like to understand the evidence behind the decisions being taken and an assurance that they understand and know the consequences, including the unintended consequences, of such measures.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, I thank my noble friend for moving this amendment and confessing, as did the noble Baroness, Lady Smith, to having difficulty getting her head around some of this. Having had this landed on me very recently, I have similar issues.
Lord Wallace of Tankerness
I am advised that it is not correct that this Bill means that leave does not continue where an application has been made in time. I think there is a double negative in there. My understanding is that Section 3C of the Immigration Act 1971 provides that where someone makes an application for further leave while they have existing leave and that the existing leave expires before the application for further leave is decided, their existing leave is extended on the same terms until that further application is decided and any appeal against its refusal is no longer pending. That is the existing position. Section 3D of the 1971 Act makes the same provision where someone has existing leave which is revoked, extending leave while they can appeal against the revocation. Schedule 9 to this Bill amends Sections 3C and 3D so that they extend leave also while an administrative review can be brought or is pending. I hope that is helpful. No doubt the noble Baronesses will want to consider it. I think that is the accurate position.
Nothing in the Bill prevents people making protection or human rights claims. We are committed to protecting such fundamental rights but equally, as has been explained on numerous occasions in Committee, we also seek to prevent abuse of the system and to create an improved process. Our concern is that the amendment that my noble friend has moved would undermine both these aims.
Extending leave because a protection or human rights claim has been made following an unsuccessful administrative review would create a strong incentive to make such claims. This would undermine the greater efficiency of the appeals framework in this Bill. There would be an advantage in making a protection or human rights claim just before leave extended under Section 3C of the Immigration Act 1971 expired, even after an appeal at the First-tier Tribunal has been decided. This would create a sequential process where the further claim and any appeal are considered after the other claim has been decided rather than at the same time. It would mean that leave is extended on current conditions for a worker, even when that worker has first sought an extension of leave as a worker and then decides he no longer wants to be in the UK to work but rather wishes to claim asylum. We do not believe that that consequential inconsistency is right.
Inserting new Section 3F into the Immigration Act 1971, as proposed by Amendment 87ZA, would create duplication. Existing Section 3D of the 1971 Act already provides that where leave is revoked, the leave will continue while any appeal against revocation is brought.
I wish to make the important point that, as I said at the outset, there is nothing in the Bill that seeks to stop or prevent people making protection or human rights claims. The Home Secretary will consider and decide any human rights claim made to her and will not remove any person while that claim remains undecided, irrespective of whether they have leave. I hope that is a reassurance that there will not be a removal while a claim remains undecided.
Amendment 87ZE queries the necessity of a consequential appeals amendment. We believe that the consequential amendment is necessary. Schedule 9 repeals the provision establishing a monitor for entry clearance cases with a limited right of appeal. This monitor role is now performed by the independent chief inspector under Section 48 of the Immigration, Asylum and Nationality Act 2006. However, the Bill provides that there will no longer be any entry clearance cases with a limited right of appeal, and therefore Amendment 87ZE would retain an otherwise redundant provision.
With regard to Amendment 87ZF, the Bill simplifies the appeals framework and removes “not in accordance with the law” and “different exercise of discretion” as grounds on which appeals can be brought. Amendment 87ZF would reinstate these as reasons for allowing an appeal, although they are not grounds on which an appeal can be brought. Noble Lords will recall from when we debated Clause 11 that the grounds of appeal under that clause are that a decision breaches the UK’s obligations under the refugee convention to those entitled to humanitarian protection, or is unlawful under the Human Rights Act. These are the relevant grounds for challenging refusals of protection or human rights claims, and, in considering them, the tribunal is considering whether the decision was in accordance with the law. That is the important point in the appeal. Similarly, the UK’s obligations to asylum seekers entitled to humanitarian protection or under the Human Rights Act are not discretionary. There is therefore no exercise of discretion for the tribunal to consider in those appeals that come before it.
I hope that in the light of this explanation and these reassurances, my noble friend will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, it would be foolish of me to try to continue the debate at this point. I obviously need to read—probably several times—what my noble friend just said and to consider it with those who are far more familiar with the whole raft of immigration legislation than I am. I beg leave to withdraw the amendment.
Lord Wallace of Tankerness
My Lords, important points have been made in this debate, following on from the debate which took place in Committee on Monday on the issues of deprivation of citizenship and statelessness. My noble friend Lord Deben has reminded us of important things: “Civis Romanus sum, civis Britannicus sum”. This is of great seriousness, and in no way do I wish to detract from the seriousness of these matters, to which I am sure the House will inevitably return on Report. Neither do I wish to try to dodge the question the noble Baroness, Lady Smith, asked, by looking at the amendment. The amendment does not raise these profound issues, which as I said, I am sure we will come back to—indeed, she has indicated that she has a meeting with my noble friend Lord Taylor of Holbeach to discuss some of those issues.
The amendment moved by my noble friend relates to part of Schedule 9, entitled “Transitional and consequential provision”, and specifically would omit Section 40A(3)(a) of the British Nationality Act 1981. The point of that omission is that Section 87 of the Nationality, Immigration and Asylum Act 2002 is repealed by paragraph 28 of that schedule. I think that this matter was debated at an earlier stage; my noble friend Lady Hamwee tabled an amendment which sought to reinstate the power of the tribunal to give directions when an appeal succeeds. The point of this amendment is to reinstate this paragraph in relation to a section which relates to the power of a tribunal to give directions following a successful appeal to give effect to its decision. When my noble friend Lady Hamwee raised that issue in an earlier debate, my noble friend explained that that power is no longer necessary, as the range of decisions that the tribunal can make following appeals reform in the Bill will be more limited, and therefore the consequences clearer.
As Section 87 is repealed by virtue of paragraph 28, the reference to Section 87 in the British Nationality Act 1981 is deleted. The consequence of my noble friend’s amendment would be to reinstate a reference to a section of a Bill that has been repealed. If that is what the amendment is about, it is on that basis that we cannot accept it. But that in no way detracts from the seriousness of the points raised, which it is inevitable that we will return to on Report.
Likewise, Amendment 87ZCA seeks to retain a further cross-reference that is redundant following the repeal of Section 87 of the 2002 Act. There is a cross-reference in the Special Immigration Appeals Commission Act 1997 to the section of the British Nationality Act which refers to Section 87.
Amendment 87ZC also relates to a change made to existing legislation as a consequence of the changes to appeal rights in Part 2 of this Bill. It would retain a reference to “immigration decision” in the Special Immigration Appeals Commission Act 1997. This reference should be removed because Clause 11 on rights of appeal to the First-tier Tribunal does not use the term “immigration decision” to describe decisions that can be appealed. Therefore, the terminology is simply inappropriate and wrong.
I apologise to the Committee for a very technical answer to what are, in fact, technical amendments. In doing so, I do not wish in any way to detract from the seriousness and importance of the points that my noble friends and the noble Baroness have made, which I am sure will be the subject of further discussion outside the Chamber and, again, when the House returns to the matter on Report. In the light of those technical explanations, I hope that my noble friend withdraws his amendment.
Lord Avebury
My Lords, in the light of those technical matters, we thought that those amendments were necessary. That is why we still consider that the power of direction of the Special Immigration Appeals Commission should be retained, as we suggested in Amendment 87ZB. As my noble and learned friend says, these are matters to which we shall return, presumably on Report when there is a fuller attendance in your Lordships’ House.
Meanwhile, I should say how grateful I was to my noble friend Lord Deben for his remarks. The same quotation occurred to me as to my noble friend—Lord Palmerston’s famous speech, in which he ended, “Civis Britannicus sum”. It was the case of a person who might not have been considered particularly worthy of British nationality, but he had it, and he was being victimised by the dictators in Naples. We should still be able to say, “Civis Britannicus sum”. As my noble friend Lord Deben said, we should not allow the Secretary of State to take away a person’s citizenship, particularly when, as he pointed out, she does not have to explain why she has done that. He agrees that it should be feasible for her to take away a person’s citizenship only when she knows that the person has another citizenship to turn to.
I am grateful also to the noble Baroness, Lady Smith, for her reference to the consequences of making a person stateless, which go well beyond the individual consequences of the person concerned. We have to think of the influence that that will have on other states that already have persons who are stateless in their community or are contemplating making people stateless; they will look to the British example, and statelessness will thereby be increased across the world. We should not underestimate the influence of a decision by a state such as Britain, which has always been in the forefront of combating statelessness and has now abandoned that stance. So I am sure that we shall return to this matter. In the mean time, I beg leave to withdraw the amendment.
Immigration Bill
Lord Wallace of Tankerness Excerpts(10 years, 9 months ago)
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“( ) paragraph 18B (detention of unaccompanied children);”
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
I rise to move the amendment standing in the name of my noble friend Lord Taylor of Holbeach and will speak to the other amendments in the group. We believe that the Government have transformed the approach to returning families with children in line with their coalition agreement commitment to end the detention of children for immigration purposes. We now propose, through these amendments, to give legislative effect to our current policies on family returns by putting key elements of the new process into primary legislation.
Ending child detention was previously debated during Committee in the House of Commons as a result of amendments tabled by my honourable friend Julian Huppert MP. In Committee, the then Immigration Minister, my right honourable friend Mark Harper, agreed that the department would see whether it was possible, either in whole or in part, to put some or all of current government policy into primary legislation. On Report in the House of Commons, my right honourable friend the Home Secretary announced the proposal to reinforce the commitment to end the detention of children for immigration purposes by putting these four key elements into primary legislation.
Lord Wallace of Tankerness
My Lords, I am grateful to all noble Lords who have taken part in this debate. I acknowledge the welcome that has been given to these particular moves. I assure your Lordships’ House that the Government take very seriously our duty under Section 55 of the Borders, Citizenship and Immigration Act 2009 to carry out our functions,
“having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”.
As I indicated in moving the amendment, the intention is to lock in, on a statutory basis, what has been an administrative change in policy. I assure my noble friend Lady Hussein-Ece that that is the purpose here; it is not to lay the pathway towards a change in policy. We believe that we have implemented a good policy, one that has commanded support from all quarters of your Lordships’ House. We wish to ensure that that cannot be undone in future except by a change to primary legislation.
Noble Lords commented on Cedars. I confess that I have not been there; that is something I maybe ought to do given what has been said about it in the course of this short debate. My understanding is that it could not be further in look or feel from an immigration removal centre such as Yarl’s Wood. It is important to emphasise, again, that families are held there only as a last report, for only a short period prior to their return and only after safeguarding advice has been sought from the independent family returns panel. Since Cedars was established, Barnardo’s has provided dedicated social work, welfare services and family support to children and their families there. I echo the compliments and praise paid to the work of Barnardo’s by a number of those who have contributed to this debate.
I will try and respond to a number of points. First, my noble friend Lord Avebury asked some questions about numbers. There are published data on voluntary returns, enforced returns and other outcomes in the family returns process. I will certainly send those data to my noble friend. I do not have details as to what the voluntary packages look like but if I can I will try to set out some of those, too. I think everyone would agree that if a voluntary arrangement can be made it is a far better outcome, not least for the dignity of the family. However, published statistics show that, under the old system, 1,119 children entered detention centres such as Yarl’s Wood in 2009, and 436 in 2010. By contrast, the latest statistics show that in the first three-quarters of 2013, seven children—at that time believed to be adults—were held in immigration removal centres and subsequently released following an age assessment. Some 64 children have been held briefly at the Tinsley House family unit after being stopped at the border and 68 children have been held at the new pre-departure accommodation for very short periods prior to leaving the United Kingdom.
On Amendment 9, my noble friend Lady Hamwee asked who a carer is in proposed new Section 78A(1)(b) and whether that included the local authority. No, the carer must be someone who has been living with the child and subject to removal as well. That rules out local authority carers but captures a situation where, for example, a child is part of a family unit with an aunt. In those circumstances, the family unit would benefit from the protection here.
My noble friends Lady Hamwee and Lady Benjamin raised the possibility of families being separated during the 28-day reflection period. As I sought to emphasise when moving the amendment, we will always seek to ensure that families remain together during the return. However, temporary separation may sometimes be necessary to safely ensure the family’s return. We would not separate a family solely for a compliance reason. It would always be where it was considered in the best interests of the child to be temporarily separated from their parent or where the presence of one of the parents or carers was not conducive to the public good. We would never separate a child from both adults for immigration purposes, or from one in the case of a single-parent family, if the consequence of that decision is that the child would be taken into care.
My noble friend Lord Avebury asked whether we can always give families a copy of the factual summary in the case. We have been working on making these documents more readily available. I am sure your Lordships’ House will readily appreciate the sensitivities involved in sharing these documents and the timings of the returns process. Indeed, one of the particular concerns is that individual members of a family may have provided information in confidence. There is a level of sensitivity around this, although as I indicated we have been working on making those documents more readily available.
My noble friends Lady Hamwee and Lord Avebury asked about the independence of the Independent Family Returns Panel. Appointments to the panel are made in accordance with the code of practice published on 1 April 2012 by the Commissioner for Public Appointments. This ensures that panel members are appointed on merit following a fair and open selection process, and the process does not compromise the panel’s independence. It includes an independent chair and other members with safeguarding and medical expertise, and provides independent advice to the Home Office on the method of return of individual families when an enforced return is necessary. The advice provided by the panel helps ensure that individual return plans take full account of the welfare of the children involved and that the Home Office will fulfil its responsibilities under Section 55 of the Borders, Citizenship and Immigration Act 2009.
I was also asked about the situation regarding the detention of unaccompanied children. I sought to make clear when moving the amendment that it is possible that a removal attempt will be unsuccessful for reasons that may be beyond the Government’s control. For example, a plane may develop a technical fault. When this happens, we accept that children should not continue to be held in a short-term holding facility for more than 24 hours. They should be released and given time to rest and recuperate. But the fact that a removal attempt is unsuccessful should not mean that such people are automatically entitled to stay in the UK. It should still be possible to enforce immigration decisions. It may therefore be necessary, after a suitable period, to attempt removal again and this may require a further, short, period of detention.
I reiterate what I said earlier. While it is vital that we enforce immigration decisions in these circumstances, we will not hold children for multiple 24-hour periods in order to achieve this.
One of the points raised by the noble Lord, Lord Northbourne, relates to holding unaccompanied children who arrive at the border. Where a child is travelling alone or is identified as a potential victim of trafficking, we may need to hold them for a very short period while we arrange for them to be taken into the care of local children’s services. I do not have figures as to how often this has happened, but all border force officers are given training on trafficking and child protection, so they know what to look out for. To support this we use a system of risk profiles, alerts, and intelligence tools to give officers the information they need to intervene in cases of suspected trafficking.
The noble Lord, Lord Judd, asked about a counsellor for unaccompanied children. It is the view of the Government that the child’s needs and interests are best protected by all the professionals already involved in the care-working. It is better that they do this together and that they each perform and fulfil their statutory responsibilities. Local authorities have a statutory duty to ensure that they safeguard and promote the welfare of children under Section 11 of the Children Act 2004 regardless of the immigration status of the children. I rather suspect that some of the valuable work done by Barnardo’s also helps support children, who I accept are at a very difficult time in their lives.
I think it has been recognised by those who have contributed to this debate that, in view of how difficult and sensitive this could be, the Government have taken great strides to try to put this on a proper basis. It is very different from what it was in the past. I recommend these amendments to your Lordships’ House.
Lord Judd
My Lords, I am very grateful to the Minister for his response to my observations on unaccompanied children. I wonder whether it would be possible for the Government to make provision whereby it was required that every unaccompanied child subject to a removal process should have a qualified and transparently independent counsellor specifically allocated to them to guide them through what may be a nightmare situation.
Lord Wallace of Tankerness
My Lords, I hear the noble Lord’s point and I think I understand what lies behind it. I was trying to make a point about what our view has been. We should probably also recognise that unaccompanied children may arise in a number of different circumstances. For example, as I was indicating, some might potentially be the victims of child trafficking, which might raise a different set of considerations from others. If a professional team has already been involved in a case, we would not want to cut across that by bringing in someone new at that stage. I recognise the importance of what the noble Lord is saying; I will reflect on it and if there is more that I can add to the answer that I have given, I will write to him.
“Restriction on removal of children and their parents etc
After section 78 of the Nationality, Immigration and Asylum Act 2002, insert—“78A Restriction on removal of children and their parents etc
(1) This section applies in a case where—
(a) a child is to be removed from or required to leave the United Kingdom, and(b) an individual who—is also to be removed from or required to leave the United Kingdom (a “relevant parent or carer”).(i) is a parent of the child or has care of the child, and(ii) is living in a household in the United Kingdom with the child,is also to be removed from or required to leave the United Kingdom (a “relevant parent or carer”).(2) During the period of 28 days beginning with the day on which the relevant appeal rights are exhausted—
(a) the child may not be removed from or required to leave the United Kingdom; and(b) a relevant parent or carer may not be removed from or required to leave the United Kingdom if, as a result, no relevant parent or carer would remain in the United Kingdom.(3) The relevant appeal rights are exhausted at the time when—
(a) neither the child, nor any relevant parent or carer, could bring an appeal under section 82 (ignoring any possibility of an appeal out of time with permission), and (b) no appeal brought by the child, or by any relevant parent or carer, is pending within the meaning of section 104.(4) Nothing in this section prevents any of the following during the period of 28 days mentioned in subsection (2)—
(a) the giving of a direction for the removal of a person from the United Kingdom,(b) the making of a deportation order in respect of a person, or(c) the taking of any other interim or preparatory action.(5) In this section—
“child” means a person who is aged under 18;
references to a person being removed from or required to leave the United Kingdom are to the person being removed or required to leave in accordance with a provision of the Immigration Acts.””
Lord Wallace of Tankerness
My Lords, this has been an important and interesting debate. It is really about appeals, but I understand why many noble Lords have also used the opportunity to talk about student issues. It is an issue which was well canvassed during your Lordships’ debate at Second Reading. I think the noble Lord, Lord Hannay, has amendments—or at least an amendment—down later in the Bill, where I am sure there will be an opportunity again to debate these matters.
I will of course try to respond to a number of the points that were made but it might be useful to put this into context—the noble Baroness, Lady Smith, spoke to the clause stand part debate and to other amendments with proposed new clauses—and to look at some of the issues regarding students in that context. The key point is that we believe that the present appeals system is complex and costly. The purpose of Clause 11 is to reform and streamline the appeals system so that appeals can be brought only where decisions engaging the fundamental rights of asylum, human rights or EU free movement are made. The clause will also set up an administrative review system to provide a proportionate and less costly mechanism for resolving casework errors.
Clause 11 changes the decisions that give rise to an appeal, the grounds on which that appeal can be brought and the jurisdiction of the tribunal to consider them. As I said, it is intended to simplify an overly complex appeals system. That complexity provides the opportunity for multiple appeals and allows removal to be delayed by the lodging of an appeal as of right where there is no arguable error or where there is a simple casework error that can be corrected more quickly and effectively by administrative review. I will come on to the wider points made by the noble Baroness, Lady Lister, which I am sure we will debate fully. The Joint Committee on Human Rights accepted that there was a legitimate objective to reduce unmeritorious claims, although I accept that other issues arise with that.
Clause 11(2) reduces to four the number of decisions that can be appealed. We recognise the importance of an appeal to an independent tribunal where a case involves fundamental rights such as asylum and human rights, and the provision preserves an appeal right in these cases. A right of appeal is also preserved where the decision was to refuse a claim based on European Union rights. That appeal right is established by secondary legislation under Section 109 of the Nationality, Immigration and Asylum Act 2002 and therefore does not form part of the Bill.
A right of appeal is not the most appropriate remedy for cases that do not involve fundamental rights. The noble Baroness, Lady Smith, mentioned that our internal sampling showed that 60% of allowed appeals against decisions under the points-based system are allowed because of casework error, and asked when that sampling was done. It was a 2% sample between April and June 2013. An appeal is a costly and time-consuming way to correct a casework error but it is not the case, as I think the noble Baroness said, that we are trying to stop a challenge where there is a casework error. There will be an administrative review system, which is what we have been debating and what we believe is the most appropriate remedy in these cases.
Subsection (3) repeals Sections 83 and 83A of the 2002 Act, which provide for a right of appeal on asylum grounds where asylum was refused or revoked but leave was granted on other grounds. They are no longer necessary, as subsection (2) provides for a right of appeal directly against the refusal of, or revocation of, asylum in all cases. Subsection (4) sets out the grounds on which an appeal can be brought. Clause 11 simplifies what is currently a complex system so that the only grounds on which an appeal can be brought reflect the decision under challenge. Subsection (5) restores the Secretary of State’s position as primary decision-maker on asylum and human rights claims and prevents appellants from raising new issues for the first time on appeal. Under the current appeals system, the tribunal has jurisdiction to decide such issues even though the Secretary of State has not had the chance to consider them. For example, a student appealing against the refusal of an application to study in the UK can currently raise asylum or their Article 8 rights, disclosing for example that they now have a family in the UK, which they can do under the present system for the very first time on appeal.
Making this change restores the role of primary decision-maker to the Secretary of State by providing that the tribunal cannot consider any reason that a person has for wanting to stay in the UK that has not already been considered by the Secretary of State, unless the Secretary of State consents to the tribunal considering the new matter. This provision does not prevent a person introducing new evidence about matters that the Secretary of State has already had a chance to consider. The tribunal will continue to be able to make its decision on the basis of all facts relevant to the matters that are before it, as required by case law. Reforming appeal rights will create a better process. Immigration judges at the tribunal will no longer need to consider caseworking errors. Applicants will have those errors considered faster and more cheaply, and those types of case will be removed from the tribunal system, which will reduce overall expense.
That is the context in which we are looking at the issue of students, although I accept and acknowledge the much wider issues that have been raised in this debate. I agree with my noble friend Lady Hamwee and with others. In fairness, the noble Lord, Lord Hannay, said as he opened the debate and moved his amendment that there was much common ground between what he was arguing for and the Government’s position.
We agree on the importance of students to the United Kingdom. My noble friend Lord Maclennan gave illustrations of the soft-power benefit that can come from that. Overseas students contribute a great deal to our economy and to the reputation of our academic institutions internationally. There is no limit to the number of genuine overseas students who may come here to study. As the Government have repeatedly said, this country welcomes the brightest and best. It is important to stress that.
On the specifics of the amendment of my noble friend Lady Benjamin, who said that she accepts nothing but compromise, I hope that I can perhaps give her more than compromise. Most of the data sought by my noble friend’s amendment is already published. Data on visa applications, grants, and refusals of tier 4 general visas, and on other visa categories, and corresponding admissions data for those entering the UK, are published quarterly by the Home Office. These statistics also show the number of visa applications made by students sponsored by higher education institutions as distinct from other types of education provider. In addition, the Office for National Statistics publishes quarterly reports on international migration statistics that now include estimates of the number of former students emigrating from the United Kingdom. The Higher Education Statistics Agency is responsible for publishing detailed data about non-EU students in the higher education system.
It might be useful to inform the debate with some statistics. I think that it was said by the noble Lord, Lord Hannay, and my noble friend Lord Clement-Jones mentioned it, too, that there had been a drop in the number of international students. To put it into some kind of perspective, in 2010-11 the number in the UK was 428,230; in 2012-13 it was 425,260, a drop of less than 3,000. Australia had a drop of 10,000 and France of 2,000. There were increases in the USA and Canada, but the drop in the UK was relatively small and much smaller than that in Australia. There was specific mention of Chinese students. Between 2010 and 2013, the number of Chinese students increased in the United Kingdom by 24.5%. Admittedly in the United States the figure was 49.5%, but the increase in Australia was only 1% and in France there was a drop of 4.4%. There is a good story to tell. We are still an attractive proposition for people wishing to come and study.
Lord Clement-Jones
Perhaps my noble and learned friend can tell us what the figures for Indian students are.
Lord Wallace of Tankerness
My Lords, disappointingly the figures for India have gone down and there may be some historical background to that. The figures have gone down from 39,000 to 22,000 over these three years. They also decreased in the United States from 103,000 to 96,000 and in Australia from 21,000 to 12,000. It is interesting that there were decreases in the UK, Australia and the United States, which suggests that there may have been other factors. As my noble friend Lord Taylor said, there had been a big increase at an earlier stage in students coming from India, but I will certainly look for more detail on that.
Lord Lea of Crondall
Does this not demonstrate the value of having some independent statistics on what you might call world market share? The figures for India, the United States, et cetera, have just demonstrated that you have to compare apples with apples on this and we are not necessarily doing that at the moment. It would be very useful, to inform the debate, if we had more data instead of anecdotal evidence on these matters.
Lord Wallace of Tankerness
The noble Lord is suggesting that these figures are anecdotal, but in respect of the countries I have just mentioned—the United States, Australia and the United Kingdom—they are genuine figures, as far as I am aware. There is no way that they are anecdotal. Those for the United Kingdom were produced by the Office for National Statistics.
Lord Hannay of Chiswick
I honestly think that we had better call the day on this selective quotation of statistics. Why cannot we all just use the Higher Education Statistics Agency’s figures for the most recent year? Just picking figures out or suggesting that two or three years before that there had been an enormous increase and so on will get nowhere. This is not a statistical matter. This is about a growing market in which we are losing market share.
Lord Wallace of Tankerness
I did not seek to dismiss this as a statistical matter. I sought to put it into some kind of context: that over the period we have been talking about the drop was less than 3,000, and other countries saw a drop as well. The important point, which I will repeat, is that this country welcomes the brightest and best and there is no limit on the number of overseas students who can come to study here.
My noble friend asked whether students who receive visas go on to use them. All genuine students who qualify will be issued with a visa for the United Kingdom but of course they may ultimately decide to study elsewhere. I know that it may be of interest to my noble friend how many students may go to the trouble of applying for a UK visa and then choose not to travel, but I regret that that information is not available to the Government. I am afraid we cannot meet all her requests but a substantial number of the things that she was seeking in her amendment are already there.
Baroness Hamwee
My Lords, I accept that and I knew that much of what I was seeking was already published. My amendment tried simply to paint the whole story. I accept that some of the painting by numbers cannot be filled in.
A few minutes ago my noble and learned friend said that there is a good story to tell. My short point is: we need to tell it. It seems that we are not telling it and I would like to find a mechanism to get it told. I passed my noble friend Lord Clement-Jones a copy of the Home Office press release that I printed off on Friday. If I were a journalist it would not tempt me to write the good story.
Lord Wallace of Tankerness
My noble friend makes a valid point. We collectively need to think about how to tell a good story better.
The noble and learned Lord, Lord Hope, asked about students staying and working after their studies. While studying, university students can work for up to 20 hours a week in term time and full-time during holidays; they can also undertake work placements. They get four months at the end of their course to gain work experience and after that they can stay if they get a graduate job earning £20,300 or more or are on one of our other postgraduate study work schemes. We have also expanded the post-study work opportunities available. PhD students can stay for a year to gain work experience and those who have a business idea to develop can do so under our graduate enterprise scheme, which I believe is the first of its kind in the world.
In trying to address the issue, the noble Lord, Lord Hannay, has moved an amendment which seeks to add decisions relating to higher education students to the types of decision that can be the subject of an appeal to the tribunal, as set out in Clause 11. The Bill already provides that anyone, including students, can appeal against one of the decisions listed in Clause 11(2): the refusal of a protection claim, the refusal of a human rights claim or the revocation of protection status. The amendment does not change that because it neither adds a new decision type to the list of decisions that attract a right of appeal nor adds to the grounds of appeal that could be raised at appeal. When I was in the other place, I used to cringe a bit when Ministers used to say, “Your amendment is technically deficient” when an important point was being made. Technical flaws aside, we believe the amendment is unnecessary. It is true that a student may no longer appeal against the refusal of an application for further leave to remain in the UK as a student under the Immigration Rules. We are doing that because the appeals system is slow and expensive for those with a genuine concern and presents too many opportunities to frustrate removal for those who seek to break the rules.
The Bill replaces the right of appeal with the administrative review process, which will provide a swifter and cheaper remedy for the majority of those students who would have been successful on appeal. For students who want to move on with their studies, I believe that a quick remedy is better than a drawn out one and that a cheaper remedy is better than a costly one. That relates to the issues which have been raised in this debate in relation to appeals.
Amendment 27 would impose three conditions which must be met before the appeals provisions in Clause 11 come into force. The first is that the Independent Chief Inspector of Borders and Immigration must report on decision-making in entry clearance and managed migration. The second is that the Secretary of State must be satisfied that decision-making for entry clearance and managed migration is efficient, effective and fair. The third is that only once those two requirements have been met can an order for commencement of Clause 11 be laid before Parliament and approved by both Houses.
I understand the reservations that have been expressed about decision-making in immigration cases. They were expressed in the report of the Joint Committee on Human Rights and by the noble Baroness today. However, these concerns must be seen from the perspective of the end-to-end immigration system. In 2012, 14,600 managed migration appeals were allowed by the tribunal. The total number of managed migration decisions taken in 2012 was 291,827. Only 5% of those decisions were overturned. Although our internal sampling indicated that 60% of the points-based system appeals that succeed do so because a case-working error has been made, this does not mean that the majority of decisions are affected by error—far from it. The great majority of applications are successful. Of decisions taken in the UK, only 10% were refused in 2012. Fifty-one per cent of those succeeded on appeal, of which 60%, as I referred to earlier, succeeded because an error was made. Looking at decisions as a whole, it is clear that only a small proportion is affected by the changes being made to the appeals system.
The Home Office has taken action to address historic problems with decision quality. I recognise that these concerns have been genuinely aired. It is why the old UK Border Agency was abolished and its functions brought back into the Home Office. That has made a real difference and work is continuing to improve decision quality. The chief inspector himself acknowledged that positive steps have been taken to improve the process by which decision-makers learn from appeals in his November 2012 report on tier 4 student visas, which in turn led to improvements in process and decision quality.
Administrative review will be a central part of the process to improve decision quality, as its function is to identify errors in decision-making. The administrative review process is being developed to incorporate an element of feedback to the original decision-maker. In this way, administrative review will support the ongoing work to improve decision quality. I can also confirm that those who do the review will not be the same as those who undertook the original decision.
The approach adopted overseas for feeding back administrative review outcomes to decision-makers and improving decision quality is recommended as the right approach by the chief inspector in his September 2013 report on tier 1 visas. In-country administrative review is modelled closely on the approach overseas.
Meeting the requirements that the amendments seek to impose before commencing Clause 11 will inevitably cause delay. That will mean that those migrants whose decisions are affected by case-working error will have to continue to challenge decisions by costly and time-consuming appeals rather than being able to take advantage of a swifter and cheaper administrative review process.
Amendment 28 also relates to the commencement of Clause 11. It would require an impact assessment to be laid before Parliament setting out the number of appeals that will be affected by the changes to appeal rights introduced in this Bill and the costs that these changes would cause the First-tier Tribunal to incur. However, as was referred to by the noble Lord, Lord Lea, an impact assessment has already been produced and was published prior to the introduction of the Bill. It contains the information that this amendment seeks to have laid before Parliament. Given the existence of the impact assessment, I hope that the noble Baroness will not press the amendment.
Amendment 29 would require the Secretary of State to produce a review within 12 months of Royal Assent of the numbers of persons deported under Clauses 11 to 14. I rather suspect that the amendment is based on a misapprehension as deportations do not take place under these clauses but rather under Section 5 of the Immigration Act 1971. However, I assume from what was said that the aim is to question what difference the changes in the Bill will make to our ability to deport those whose presence is not conducive to the public good, including foreign national offenders.
The changes made in the Bill are not about large increases in the number of foreign criminals we deport but about the principle that Parliament is rightfully the body to set out the public interest in the importance of seeing foreign criminals deported and that the tribunal is the right body to weigh the strong public interest in deporting foreign criminals against the specific Article 8 rights of the criminal and their family. Success will be seen as these deportation cases progress through the Immigration Tribunal with outcomes that clearly show that the tribunal decision has had particular regard to Parliament’s legitimate view on the public interest. Case law will take some time to develop and settle once these provisions are commenced. It is not sensible to have a set period on the face of legislation for when a report must be presented when we may well at that point have only a very partial picture of the impact of the changes.
The statement of intent published in relation to the Bill also indicated that:
“Within a year of the administrative review process being established, the Home Secretary will ask the independent chief inspector to include a review of the administrative review process in his inspection plan”.
It is certainly my understanding that, off his own bat, the chief inspector can also take up any issue at any time. The Government have committed to asking the independent chief inspector to include a review of the administrative review process established under this clause, with that to be done within a year of the process being established. On the basis of these reassurances, particularly with regard to appeals, I hope that the noble Lord will be willing to withdraw his amendment and that noble Lords will agree that Clause 11 should stand part of the Bill.
Lord Hannay of Chiswick
My Lords, I will be very brief because the noble Lord, Lord Singh, and others who are involved in the next debate have been sitting with mounting irritation, I seem to think. He has been very patient and I will not say much.
The point I am making here is that the cumulative effect on students and post-graduates is damaging. The evidence is there and we would be foolish to ignore it. I hope that Ministers will, between now and Report, look carefully at the cumulative issue. That is important. The noble and learned Lord, Lord Wallace of Tankerness, suggested that the drafting of my amendment is somewhat short of perfect. I asked someone who shall remain nameless about that earlier today. He said, “Don’t worry, Ministers always say the drafting is imperfect but, if the House’s views are made known to them, somewhere before Third Reading they will get it right. They have lots of lawyers who can get it right”. I do not wish to continue further now other than to say that we will have to come back to this issue both in the debate on Amendment 49 and on Report. Meanwhile, I beg leave to withdraw the amendment.
Female Genital Mutilation
Lord Wallace of Tankerness Excerpts(11 years ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, we should hear from the Cross Benches.
Baroness Cox
Is the Minister aware that women who have had FGM and whose daughters are likely to be at risk of subjection to this abhorrent practice are not currently tracked through the NHS or social care systems, so that no preventative measures can be implemented, and that girls at school who show signs of having had FGM are not referred to social services or the police for follow-up action? I therefore ask the Minister what Her Majesty’s Government are doing to ensure that robust information-sharing protocols are developed between health, social care and education agencies and the police so that appropriate actions can be taken to support victims and bring perpetrators to account.
Baroness Hussein-Ece
My Lords, I am sure that my noble friend the Minister is aware that there are people who want to perpetrate this terrible abuse against young girls who consider some regions of the United Kingdom to be a soft touch. Reports show that girls are being taken in particular to Scotland and parts of the Midlands, where such people think that there is less enforcement. Will the Minister reassure us that there will be consistency in dealing with this child abuse? This has nothing to do with religion; it is child abuse and should be recognised as such.
Police Reform and Social Responsibility Bill
Lord Wallace of Tankerness Excerpts(13 years, 5 months ago)
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The Advocate-General for Scotland (Lord Wallace of Tankerness)
My Lords, I start by agreeing with the observations of the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Scotland, that it is important that we have an efficient system of prosecution available in this country to deal with cases, when the evidence is available, that relate not only to war crimes but also to many of the other offences listed in this clause in respect of which the United Kingdom has sought to assert universal jurisdiction. My noble friend Lord Palmer of Childs Hill made it clear that nothing in this clause seeks to end universal jurisdiction, nor indeed does it end the right of private prosecution for universal jurisdiction cases. Although such grave offences may well seem better suited to prosecution by the state, we think it right that citizens should be able to prosecute them.
Clause 155 allows anyone to apply to a court to initiate a private prosecution for universal jurisdiction offences by using arrest warrants where appropriate. It prevents a warrant being issued in cases where there is no realistic prospect of a viable prosecution taking place. As these are cases where issuing a warrant would achieve nothing, that is surely right. That point was made by my noble friend Lord Thomas of Gresford in moving his amendment. Indeed, with a singular exception, no one has dissented from the reform and from the purpose of Clause 155, which introduces the consent of the Director of Public Prosecutions. Through this amendment, what we are looking at is the question of whether the criteria applied and approach taken by the DPP in giving consent is something which should be on the face of the Bill. It is certainly the Government’s view, which I think is shared by most noble Lords who contributed to the debate, that it should not.
Those of us who have read the clear and cogent evidence given by the DPP to the Public Bill Committee in the other place will have seen clearly how, if Parliament passes this provision, he intends to exercise the duty of whether or not to give consent. He has also made it clear that he proposes to apply the same code tests to the evidential and public interest tests that are used for prosecutions generally, and he has further indicated, as has been mentioned in this debate, that where necessary he would apply the lesser standard of the threshold test. He indicated to the Public Bill Committee that he intends to publish guidelines so that everyone will know how he would deal with decisions on whether or not to give consent.
I, too, want to endorse the comments of noble Lords that we can have confidence that the DPP will exercise his discretion properly. He has a track record which gives us full confidence that he will do that. I share the view expressed by my noble friend Lord Carlile of Berriew, the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Scotland, that that is a good reason not to inhibit that discretion by putting things into statute. These tests are of general application and it is not clear why they should be set in stone by this amendment. Indeed, in Committee my noble friend Lord Carlile said that the amendment attempts,
“to fix in statutory stone something that is much more evolutionary—and needs to be”.—[Official Report, 16/6/11; col. 1011.]
We would not wish to stop that evolution, particularly given the commitment to transparency on the part of the DPP.
A further point was noted by the noble and learned Lord, Lord Goldsmith, in Committee and has been highlighted today, not least by the noble Lord, Lord Pannick. It relates to the public interest dimension of the threshold test, which is not mentioned in the amendment. I rather thought that my noble friend Lord Thomas was suggesting that it was not necessarily part of the threshold test. However, paragraph 5.12 of the Code for Crown Prosecutors states:
“If both parts of the Threshold Test are satisfied, prosecutors must apply the public interest stage of the Full Code Test based on the information available at that time”.
If we put something in statute, there is a danger of actually missing something out that is in the test as it applies at the moment. Perhaps that underlines why it is not desirable to have this in legislation.
My noble friend has indicated that he is not going to press his amendment, and I think that will meet with the general support of the House. I encourage him to confirm that.
Lord Thomas of Gresford
My Lords, a great deal of heat has been engendered in the course of the debate and I do not propose to add to it, although certain things were said about deconstructing this amendment with which I do not agree. However, I can take them up at a different time. Let me make it clear that there have been discussions between my noble friend Lord Macdonald and Mr Keir Starmer and they have come to a conclusion that is acceptable to both; namely, that the test should be published in guidance. No doubt it will be applied appropriately and in accordance with the traditions of this country, which are that the Director of Public Prosecutions and the Attorney-General should act in the public interest and not for the purposes of any political party. I beg leave to withdraw the amendment.